R v Steven Ray Hughes

[2008] NSWDC 359

CITATION:	R v Steven Ray HUGHES [2008] NSWDC 359
JUDGMENT DATE:	12 June 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application is refused.
CATCHWORDS:	CRIMINAL LAW - jury trial - application to discharge jury - argument that juror is not undertaking duties responsibly - delays due to jurors' sickness, medical appointments and holidays
PARTIES:	Regina Steven Ray Hughes
FILE NUMBER(S):	2007/15013
COUNSEL:	Mr Moberley Mr Buckman
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. Mr Buckman who appears for the accused has applied to discharge the jury. The issue raised by his application is whether an application by a juror to be excused for two days earlier this week for a holiday indicates an attitude by that juror that he or she is not undertaking their duties responsibly. A secondary issue is whether if such an attitude existed it has infected the other jurors.

2. This trial commenced on Monday 26 May 2008. The jury was told that the trial may run into a second week, that is the week commencing Monday 2 June 2008. On the second day of the trial, namely 27 May, a juror was sick and we lost the whole day. On the fifth day of the trial, namely Friday 30 May, I had sentence matters which were essential to attend to because they had been not reached previously. We lost half a day. We went into the second week. On the Wednesday of the second week, namely 4 June, a juror had a medical appointment and the result of that was that we lost a whole day.

3. On Thursday 5 June I sent the jury out to consider its verdict. It returned on Friday 6 June with various questions. One series of questions indicated that there was the possibility of deadlock and asked for assistance. Another note, MFI 31, which was brought to my attention late on Friday 6 June indicated the jury would sit to 4 o’clock on Friday to try to reach a decision but one of the jurors had to leave at four. It further indicated that Tuesday and Wednesday of the following week, that is the Tuesday and Wednesday of this week, one of the jurors has a holiday booked.

4. Mr Buckman and Mr Moberley for the accused and the prosecution respectively agreed that the matter should be adjourned until today but Mr Buckman specifically reserved his position upon whether he may make an application to discharge the jury. He has made that application this morning.

5. On his application his arguments are these. The first is that one of the jurors, namely the juror who took the two days holiday, is not taking their duties seriously enough. The second point is that because of the lapse of time of five days and the indication that the jury may be deadlocked there is a danger that some of the remaining jurors may be infected by the perceived cavalier attitude of the one juror going on holidays and be persuaded of a different view inappropriately. Related to that is a concern that the other jurors may be persuaded to other views because they no longer wish to be here given the lapse of time. Mr Buckman’s final point is that these problems cannot be remedied by directions because it is too late. Indeed the only direction that might have been given is that jurors should take their jobs more seriously.

6. It can be seen that an important aspect of Mr Buckman’s argument is that the one juror who was going on holidays for two days this week is not taking their duties seriously enough. I do not accept that submission. That is a conclusion which may be available but which I expect is unlikely. The holiday may have been pre-booked some time ago. It must have been pre-booked to some extent at least because we were warned as early as 2 June 2008, that is the Monday before the Friday 6 June, that a juror had commitments the following week and was not available after Friday. In addition the jury were told that the trial may run into a second week impliedly at the latest.

7. I think it also needs to be borne in mind that juries are not as familiar with the procedures that can accompany jury trials as counsel and judges are. We, counsel and judges who are regularly involved in these processes, understand that there can be unexpected delays caused by illnesses. We also understand that parts of the process such as counsel’s addresses and summing-up can take longer than juries might expect. Although they are told when it is anticipated they might be sent out, nevertheless it must be difficult for them to know in advance whether the time available will be sufficient for them to reach a decision or not.

8. I do not conclude that the indication that one juror needed to take their booked holidays on Monday and Tuesday of this week points to an inappropriate attitude on the part of that juror. It would have been quite reasonable for that juror to make that arrangement as late as the first day of the trial when they were given the estimate and even at the commencement of the second week when it would not be known that we would lose an extra day and when the jurors may not have known how long the process may take.

9. It follows that I do not regard there being any danger of the other jurors being infected by any inappropriate attitude displayed by the juror who has taken their holidays. I agree with Mr Moberley’s submission that the fact that the jury has indicated that there is a possibility of a deadlock points more to them taking their jobs seriously than in the other direction. He reminded me that they had expressed a preference to sit as a jury as twelve and wait until Thursday when all twelve were available. I agree with him that that points to an attitude that they value the twelve of them being together and therefore do not regard the juror who took the holidays as a person whose opinion would not be valued because of a particular cavalier attitude.

10. I too am somewhat concerned about the lapse of time of five days. I should observe that last Monday 9 June was a public holiday so that there would have been a lapse of three days anyway. I do not regard it as necessary for any direction about jurors doing their jobs properly because I do not think that there is any evidence that any juror is not doing his or her job properly. But I do think it appropriate to acknowledge in directions that the jurors should be aware of distractions which may have occurred during the five days and for the necessity to refocus on their task. I think it is probably also appropriate in addition to giving them the usual direction in circumstances of a possible deadlock to remind them that they may have access to transcripts and further directions.

11. For those reasons I reject the application.

Thank you both for your assistance with that, I have been assisted. Now I will just give back the MFIs. Yes Mr Buckman.

BUCKMAN: Does your Honour propose to give a Black direction now?

HIS HONOUR: Yes I think I should don’t you?

BUCKMAN: Yes.

HIS HONOUR: And I think I ought, as I said, acknowledge the lapse of time and say it is important that they refocus and remind them that, if they need to be reminded, of evidence or directions then they should.

BUCKMAN: Yes, thank you.

HIS HONOUR: Mr Moberley? Anything to add?

CROWN PROSECUTOR: No, nothing to add.

HIS HONOUR: We are ready for the jury.

BUCKMAN: If I can just speak to my client?

HIS HONOUR: Yes, yes go ahead.

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